THERE has been a lot of celebration in the media of late to mark the 50th anniversary of the decriminalisation of male homosexuality with the passing of the Sexual Offences Act on July 27, 1967. However that act only had effect in England and Wales. The original 1967 act wasn’t extended to Scotland due to the opposition of Scottish MPs, both Labour and Conservative. Scotland, they claimed, needed to be protected from the evils of homosexuality. Gay men in Scotland had to wait another 13 years for the Criminal Justice Scotland Act of 1980 to extend the same provisions to Scotland.

Sodomy, legally defined as anal intercourse, had been illegal in England and Scotland since at least the 16th century, and for much of that time it was a capital offence. The law was harsh, sentences were exercises in sadistic cruelty. One of the earliest attested Scottish cases was in 1570 when John Swan and John Litster were convicted by the High Court of the Justiciary in Edinburgh of “the wilde, filthie, execrabill, detestabill, and unnatural sin of sodomy, otherwise named bougarie, abusand of their bodies with utheris, in contrare the lawes of God, and all other human lawes”.

They were sentenced to be strangled at the stake, their bodies burned, and their ashes scattered, depriving them of a Christian burial in a society which believed that only a burial in consecrated ground allowed the dead to rest in peace for eternity. It was a law which not only sentenced gay men to death, but sentenced them to eternal torment.

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Laws against homosexuality were often conflated with laws against witchcraft. On April 2, 1630, a certain Michael Erskine was convicted for “diverse points of witchcraft and filthy sodomy” and was burnt at the stake. In Scotland sodomy remained a capital offence until 1889, making ours the last country in Europe to retain the death penalty for homosexuality.

In the late 19th century, Victorian morality demanded that all forms of homosexuality should be outlawed, even those where sodomy could not be proven or did not take place. The result was the so-called Labouchere Amendment of 1885 which introduced the crime of gross indecency. Only male homosexuality was outlawed by the law of 1885. According to a persistent but unreliable legend, when the act criminalising homosexual behaviour was presented to Queen Victoria for her signature, she struck out all references to lesbianism because she refused to believe such a thing existed. In reality lesbianism wasn’t outlawed because Victorian male lawmakers thought it was best not to draw any attention to it, and because they were incapable of conceptualising any form of sexuality that didn’t involve a phallus.

In 1967 in England and Wales, homosexuality was decriminalised under certain very specific circumstances. Whereas the heterosexual age of consent was 16, for gay men the age of consent was set at 21. Whereas the underage partner in heterosexual sex was not commiting an offence, an underage gay man was. If a 21-year-old man had sex with his 19-year-old boyfriend, both faced criminal action. The lawmakers hypocritically set the age of consent at 21 in order to, they claimed, protect young men. Then they protected young gay men by criminalising them.

The other restriction was that sex between men was only decriminalised when it took place in private, and “private” was very narrowly defined. Gay sex was not to be subject to prosecution if it took place in a private residence in which no-one but the two (and only two) participants were present on the premises. Threesomes were most definitely illegal. It was even technically illegal for a gay couple to have an overnight guest. If a gay act did not comply with this strict definition of privacy, it was still considered to be the offence of gross indecency.

Even the narrow window of legality introduced in England and Wales did not exist for gay men in Scotland. Gay sex remained illegal and being gay was highly stigmatised. I can remember when I was young being confidently told that we didn’t have any gay people in Scotland. There was a modicum of truth in that, for many gay Scots the way that they dealt with their sexuality was to take the train south to the bright lights of London at the earliest opportunity.

It wasn’t until 1980 that the law in Scotland was brought into line with the law in England and Wales. Ironically it took Margaret Thatcher’s first government to impose it on the social dinosaurs of the Scottish Labour Party. But it wasn’t the change in the law which brought about a change in Scottish social attitudes. It was the Aids crisis of the 1980s.

As the magnitude of the epidemic revealed itself, thousands of gay men and lesbians all across the Western world, including Scotland, realised that we were staring death in the face. Our choices were stark. Die in silence, or die fighting for our rights. By the thousands, we chose the latter. The 1980s were characterised by closet doors popping open all over the place, mine amongst them. As Scottish lesbians and gay men came out of the closet, heterosexual Scots realised that Scotland did have gay and lesbian people, and they weren’t the monsters of the tabloid gutter press, they were friends, family, colleagues and acquaintances. That’s what started the sea change in Scottish social attitudes. Not the Labour Party. Not any political party. Not even a non-party campaign. It was thousands of ordinary LGBT Scots and their heterosexual families and friends.

It wasn’t all plain sailing. There was the bitter campaign supported by the Daily Record in the naughties to prevent the repeal of Thatcher’s law preventing schools from mentioning homosexuality and thus preventing them from campaigning against homophobic bullying. But we won, and progress continued.

In 2015 and 2016 the Rainbow Europe index voted Scotland the best country in Europe for lesbian, gay, bisexual, transgender and intersex equality and human rights.

There might not be any significant anniversary for LGBTQ rights in Scotland this year, but we still have reason to celebrate. From being one of the last countries to remove the death penalty for gay sex, one of the last to decriminalise homosexuality, and from being one of the most repressive countries in Europe for LGBTQ people, Scotland has transformed itself into the country with the most progressive rights in the world.

That’s something we can all, gay or straight, be very proud of. As we celebrate, we must never forget the thousands who died in the epidemic. Our equality and social acceptance today is a testament to their suffering, and a testament to the good sense and respect for human rights of the people of Scotland.

Ipsoregulated

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